The Manila Times
NO HOLDS BARRED
Rep. Edcel C. Lagman’s
Weekly Thursday Column

THE practice by the Supreme Court of releasing a cursory media advisory on the bare results of its adjudication of high-profile cases, like the challenged Anti-Terrorism Act of 2020 (ATA) or Republic Act 11479, without the ponencia and the justices’ separate opinions, leaves the parties and the public in the dark on how the contentious issues were resolved.

On Dec. 9, 2021, the Supreme Court’s Public Information Office issued a media advisory that the controversial ATA was found constitutional on the whole, except for a) the killer proviso in Section 4 of the ATA which gives the police and the prosecutor the blanket authority to negate the respect accorded to free speech and dissent in a prior portion of the same section; and b) the method of designation in Section 25, Paragraph 2 of the ATA, upon the request of “other jurisdictions or supranational jurisdictions”.

The advisory instructed the parties and the public “to await the publication and read the decision and the separate opinions for the explanation of the votes.” That was two weeks ago, but until now the decision and the other opinions are yet to be released. We pray that this practice of “results now, decision later” be abandoned because it serializes the publication of the decision even as it consigns everyone to suspended speculation.

For example, we would like to know how the Supreme Court ruled as constitutional the maximum of 24 days detention of a terror suspect upon the sole order of the Anti-Terrorism Council (ATC), an executive agency under the Office of the President.

Section 29 of the ATA on the maximum of 24 days incarceration of “suspected terrorists”, without judicial warrant of arrest, odiously defies more than a century of libertarian tradition enjoyed by Filipinos against unreasonable seizures of their persons dating back to the Malolos Constitution of 1899, the Philippine Bill of 1902, the Jones Law of 1916, and the Constitutions of 1935 and 1987, but not the 1973 Marcos Constitution.

In stark contrast with the ATA, the Malolos Constitution, the first Constitution of the Philippines and the first republican charter in Asia, mandated 122 years ago that “[a]ll persons detained shall be discharged or delivered to the judicial authority within 24 hours following the act of detention.” Verily, the ATA has ominously retrogressed to draconian times.

Arrest warrants are invariably issued solely by a judge, although during the martial law regime, in addition to judicial warrants, executive warrants like the infamous Arrest, Search and Seizure Orders (ASSOs) were issued upon authority of the dictator Ferdinand Marcos, and legitimized by his 1973 Constitution. This anomaly was obliterated by the 1987 Constitution which deleted the phrase “or such other responsible officer as may be authorized by law,” and reverted to the 1935 provision on judicial warrants of arrest upon probable cause, and added “to be determined personally by the judge.”

The high court has repeatedly ruled that only a judge can issue a warrant of arrest to the exclusion of non-judicial officials. Except for the three instances of in flagrante delicto, hot pursuit, and escaped prisoner where warrantless arrest is authorized under Section 5 of Rule 115 of the Rules of Court, the inflexible rule is that no arrest can be effected without a judicial warrant. Even in warrantless arrests, the period of detention is delimited by Art. 125 of the Revised Penal Code, the maximum of which is 36 hours. Extrajudicial arrests and detentions for 24 days, without judicial authorization, are arbitrary, even odious.

Detention upon the unilateral and unbridled order of the ATC arrogates judicial jurisdiction and resurrects the notorious ASSOs of martial law vintage. Extended detention induces the commission of torture by police interrogators to coerce confession in violation of the Anti-Torture Act of 2009. Extended detention without judicial intervention must be proscribed to foreclose the incidence of torture. Section 29 of the ATA also violates the Convention Against Torture and the International Covenant on Civil and Political Rights prohibiting arbitrary arrests or detention. The Philippines is a State Party to both conventions.

It is grossly ironic that when the privilege of the writ of habeas corpus is suspended, the 1987 Constitution mandates that the detention of a suspect shall not exceed three days within which he shall be judicially charged, otherwise he shall be released, but during normal times under the ATA, extrajudicial detention is a maximum of 24 days.

Verily, an executive warrant of detention violates the separation of powers. The ATA also unlawfully expanded Rule 113 of the Rules of Court on warrantless arrests. Thus, the Congress usurped the exclusive rule-making power of the Supreme Court under Section 5.5 of Article VIII of the Constitution on the “protection and enforcement of constitutional rights”. The Congress cannot intrude on the Supreme Court’s constitutional mandate.

While the Congress does not pass irrepealable or unamendable statutes, it cannot enact arbitrary laws offensive to the Constitution. Consequently, the legislature cannot amend Article 125 of the Revised Penal Code by unduly prolonging the period of detention without judicial intervention or oversight. The Congress cannot breach the three-day benchmark under Section 18 of Article VII of the Constitution when the writ of habeas corpus is suspended during extraordinarily precarious times. During normal times, 24 days of detention without judicial warrant of arrest is a constitutional aberration.

Prolonged detention denies the suspect’s right to be presumed innocent, deprives him of his right to seasonably post bail, derails his right to speedy disposition of his case, divests him of his right to promptly avail of the writs of habeas corpus and amparo, and derogates his right against torture. These constitutional rights demand reasonably short custodial or pre-trial detention.

Constitutional infirmity is patent on the face of ATA’s Sec. 29 wherein a) an executive authorization for detention usurps the requisite judicial warrant of arrest; b) mere suspicion supplants prior judicial finding of probable cause; and c) the 24-day maximum extrajudicial detention is inordinately lengthy and oppressive, all in violation of the Bill of Rights and other fundamental safeguards.

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Merry Christmas to one and all!

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